V.S. v. Superior Court
Filed 2/6/12 V.S. v. Superior Court CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
Party in Interest.
A133630
(
Super.
Petitioner
contends there was insufficient evidence
to support the juvenile court’s order removing her daughter from her care after
a second supplemental petition was
filed under Welfare and Institutions Code section 387. Because there was sufficient evidence of a
substantial danger to the child’s physical health, safety, and emotional needs
if she were allowed to be in petitioner’s care, the petition will be denied.
I. FACTS AND PROCEDURAL HISTORY
Petitioner
V.S. (mother) is 20 years old; her daughter is 7 years old. Mother became pregnant with the child after
mother was sexually molested by mother’s stepfather. The stepfather is serving 80-years-to-life
for rape and sexual abuse.
A. Detention
in 2008
In
October 2008, real party in interest
Francisco County Human Services Agency (Agency) filed a petition alleging
that the child, then three years old, was within the provisions of Welfare and
Institutions Code section 300, subdivisions (b) and (g).
with the responsibilities of caring for a toddler and realized it was in the
child’s best interests to live with non-relative extended family members,
Melissa and Robert C., with whom the child had previously resided.
A
Detention/Jurisdiction report advised that mother (also a dependent of the
court) and the child had been placed in several foster homes since the child’s
birth. Since then, mother stated on
several occasions that she did not want to care for the child. According to a Disposition Report filed on December 19, 2008, Agency recounted
that mother and the child were bonded, but mother requested that the child stay
with Melissa and Robert C. so she could focus on finishing high
school.
At
the settlement conference on jurisdiction and disposition on February 4, 2009, mother submitted to
the allegations of the section 300 petition, and the court found the allegations
true. The child was declared a dependent
of the court, and reunification services and visitation were ordered.
A
status review report in July 2009 stated that there were problems coordinating
mother’s visits with the child, such that Melissa and Robert C. could no longer
care for her. The child had been placed
with Melissa C.’s sister, Nancy R., in June 2009. Concerns were also raised regarding mother’s
parenting capabilities, her failure to supervise and care for her daughter, and
her reliance on others to provide care.
Mother missed several weekend visits with the child, and she admitted
that she needed assistance in learning to parent her child.
In
reports filed in July and October 2009, Agency recounted the foster parents’
concerns that mother was not adequately supervising or monitoring the child in
public, would rely on others to care for the child during visits, and permitted
the child to play out of her view, where on one occasion the child conversed
with strangers and leaned into a stranger’s car. The child also told a social worker that
mother hit her in the face when she was not quiet at a fast-food
restaurant. On another occasion, mother
transported the child without a car seat.
In
October 2009, the court ordered that the mother receive therapeutic visits with
the child once a week, with two additional unsupervised visits during the
week. The court also ordered an
additional six months of reunification services.
B. Return
to Mother’s Custody in January 2010
After
a contested 12-month review hearing on January 7, 2010, the juvenile court
ordered that the child be returned to mother’s care and custody. Later that month, Agency reported that the
child was transitioning well and mother was demonstrating significant improvements
in learning how to parent.
C. First
Supplemental Section 387 Petition in June 2010
On
June 11, 2010, Agency filed a section 387 supplemental petition alleging that
mother placed her child at a substantial risk of harm and/or abuse because
mother was in a relationship characterized by domestic violence, she failed to
comply with previous interventions and resources to disengage from the domestic
violence relationship, and the lack of supervision and chaotic environment in
the home posed a safety risk for the child.
Agency reported that the person with whom mother was in a relationship,
Ryan S., was described by police as a well-known drug dealer who had a warrant
out for his arrest. When mother tried to
end the relationship, Ryan vandalized and burglarized her apartment. Mother made arrangements to have the child
stay with Nancy R., because “[mother] needed a break with having to care for
[the child] because [mother] felt that [mother] was not emotionally stable.†After a week, the child returned home to
mother.
Ryan
later chased mother and the child and physically attacked mother, pulling her
hair and punching her in the head multiple times in front of the child. Ryan was arrested; when he was released from
custody four days later, he returned to mother’s apartment, forced his way into
her apartment, and was again arrested.
At a meeting with mother’s attorney, the family therapist, a domestic
violence specialist, a peer parent advocate, a social worker intern, the social
worker, and others, mother stated that she would not break up with Ryan and
refused to proceed with a restraining order against him. She agreed to have the child removed from her
home and placed in foster care.
On
June 14, 2010, the court sustained the section 387 supplemental petition,
renewed the dependency, and vacated the prior order returning the child to
mother’s care. The child was placed
again in temporary foster care. The
court subsequently ordered that mother be provided with reunification services
and supervised visitation.
D. Return
to Mother’s Custody in March 2011
A
status report filed on January 19, 2011, advised that mother had moved in with
her grandmother, ended her abusive relationship with Ryan, obtained a
restraining order against him, restarted therapy, and attended support groups
for victims of domestic violence. She
also re-enrolled in college and planned to resume working at a part-time
job. In addition, she was approved for
“Section 8†housing and was looking for a two-bedroom apartment.
On
March 18, 2011, in accord with Agency’s recommendations, the juvenile court
placed the child back with mother and ordered family maintenance services.
E. Second
Section 387 Supplemental Petition:
Detention July 2011
About
four months later on July 7, 2011, Agency filed a second supplemental petition
under section 387, alleging that the March 18 order was ineffective in the
protection or rehabilitation of the child because: (1) mother left the child in the care of a
family friend (Tina E.) for a visit on May 29, 2011, and had not provided
support for the child since then; (2) mother was unable to provide a safe
living environment for the child, in that the family members with whom mother
was residing threatened to harm her and refused to allow mother and the child
to continue living there; and (3) mother had not participated in individual
therapy or a domestic violence program since the child was returned to her care
in March 2011. Agency recommended
placement of the child with a nonrelative extended family member.
Agency
explained in its supplemental petition report (filed July 7, 2011) that mother
was living in an unsafe home in the “Double Rock†low-income housing
complex. In May 2011, mother’s aunt and
uncle had threatened to “come after her with a baseball bat,†which led mother
to leave the child with Tina, out of fear the child would be harmed. Mother retrieved the child until the end of
May, when she left the child with Tina for almost six weeks without clothing or
provision (despite receiving aid from CalWORKS and income from work) and
visited the child only once during that period.
Furthermore, mother’s grandmother no longer wanted mother or the child
to live in the home, yet mother made only minimal efforts to find alternative
housing, despite the services and referrals offered to her. In addition, mother had not participated in
individual therapy in four months, failed to complete the domestic violence
program, failed to appear for family therapy, failed to follow up on a referral
for a new therapist, relied heavily on others to care for the child, could not
manage her time, and had difficulties following through with day-to-day
tasks. Now six years old, the child
stated that she did not want to return to her mother’s care and that she did
not feel safe in her mother’s home.
After mother visited her on June 24, the child started wetting the bed
at night, which she had purportedly never done before.
Agency
recommended that services be terminated (because the child was initially removed
over 18 months earlier) and a section 366.26 hearing be set to implement a
permanent plan for the child. Agency
argued that, after almost three years of services, mother continued to make
poor decisions, failed to participate in numerous services offered to her, and
refused to follow through with promises to engage in actions that would benefit
her child. She also failed to secure
adequate housing and repeatedly demonstrated she could not adequately or
independently care for the child full-time.
1. Contested
Detention Hearing
At
the contested detention hearing on
July 15, 2011, the court admitted into evidence the section 387 supplemental
petition report. The social worker
testified that mother had not visited or called the child since the last court
hearing or made any effort to secure housing before the child’s removal,
despite an offer of resources. Tina
reported that she had to purchase clothing for the child and that the child was
anxious and wet the bed at night. The
child told the social worker she wanted to stay at Tina’s. Mother testified that she planned to provide
daycare for the child and locate suitable housing; but she admitted that after
regaining custody in March she sent the child to others for spring break, she
did not complete her domestic violence requirements, she missed at least
four therapy sessions, she attempted only once to visit the child since
May 27, and on that occasion failed to show up or call to cancel.
The
matter was set for a contested jurisdictional and disposition hearing.
2. Contested
Jurisdictional and Disposition Hearing
At
the hearing on October 24, 2011, the juvenile court admitted into evidence the
section 387 supplemental petition of July 7, 2011, along with an addendum
report filed by Agency on October 14, 2011.
In
the addendum report, Agency advised that mother had started to live at Raphael
House, and although currently in compliance with its requirements, she was
placed on probation at the residence in August 2011 for missing multiple
therapy sessions, taking overnight visits away from the program without
permission, not returning to Raphael House when scheduled, not communicating
with her case manager or staff in a timely manner, and not completing
chores. Although mother regularly
visited the child (who continued to live with Tina), mother missed two visits
in August and September. Furthermore,
without being prompted, the child informed the social worker that she wanted to
live with her former caregiver, Nancy R.
The child expressed fear at the prospect of returning to live with
mother, and she was afraid that mother would hit her. In fact, the child wanted a technician to be
with her during her mother’s visits so she would not be hit, and claimed her
mother’s behavior changed depending on whether other people were around. Agency recommended that reunification
services be terminated and that a section 366.26 hearing be held, in light of
mother’s demonstrated inability to participate consistently in the services
designed to benefit her and her daughter.
At
the hearing, the court also heard testimony from the social worker and
mother. The social worker explained her
recommendations to vacate the order placing the child with mother, to terminate
reunification services, and to set a section 366.26 hearing. She added that the child wanted any visits
with mother to be supervised, so she would not get hit or â€flicked†on the
cheek.
Mother
testified as to her relationship with the child and the events leading up to
the child’s most recent removal. On
cross-examination, mother stated that she was approved for “Section 8†housing
but that she was “not in a rush†to look for an approved house or apartment. She also admitted that she never notified the
social worker of her decision to leave the child with Tina for the summer.
Also
at the hearing, the child’s attorney informed the court that the child had
expressed to her the same concerns she had expressed to the social worker. Particularly, the child told her attorney
that she preferred the visits with her mother be supervised “because she was
worried her mother would flick her if there was no one there to watch.†The child also described her mother hitting
her with “an open hand against her cheek†and stated she did not want to live
with her mother.
3. Juvenile
Court Order
The
juvenile court found all three counts of the section 387 supplemental petition
true (modifying the third count to read that the mother had not regularly
participated in therapy or a domestic violence program since the child was
returned to her care in March 2011), vacated the prior order placing the
child with mother, and found by clear and convincing evidence that reasonable
serices were provided and returning the child to mother would “carry a
substantial risk of detriment to the safety, protection, emotional or physical
well-being of the child.†The court
terminated reunification services and set a section 366.26 hearing for February
29, 2012.
This
writ petition followed. We issued an
order to show cause to the juvenile court, and Agency filed an opposition to
the petition, which we deem to be the return to the order to show cause.
II. DISCUSSION
Mother
challenges the court’s findings and orders at the hearing on October 24,
2011. Specifically, she claims the
evidence was insufficient to show that there was a danger to the child at the
time of the hearing. We disagree.
Agency’s
section 387 supplemental petition sought an order removing the child from
mother’s physical custody and directing placement out of the home on the ground
that the previous disposition had not been effective in protecting the
child. (Cal. Rules of Court, rule
5.560(c); § 387, subd. (b).) The
standard for removal on a supplemental petition is the same as removal on an
original petition under section 361, subdivision (c). (See Cal. Rules of Court, rule 5.565(e)(2);
1000-1003.)
Agency
was required to show, by clear and
convincing evidence, that there was a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the child if
left in parental custody and there were no reasonable means by which the
child’s physical health could be protected without removing her from parental
physical custody. (§ 361, subd.
(c)(1); Kimberly R. v. Superior Court
(2002) 96 Cal.App.4th 1067, 1077.) “The
parent need not be dangerous and the minor need not have been actually harmed
before removal is appropriate. The focus
of the statute is on averting harm to the child. [Citations.]â€
(In re Diamond H. (2000) 82
Cal.App.4th 1127, 1136, overruled as to another ground Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court may consider a parent’s past
conduct as well as present circumstances.
(In re Troy D. (1989) 215
Cal.App.3d 889, 900.)
We
review for substantial evidence. (
p. 1078.)
Substantial
evidence supported the juvenile court’s conclusion that there was a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of the child if left in mother’s custody, and that there were no
reasonable alternatives to removal. For
years mother received services and referrals from Agency, but each time she was
permitted to care for the child she became overwhelmed and turned the child’s
care over to someone else – once without even notifying Agency. After the child was restored to mother in January
2010, the child was returned to foster care just five months later in June
2010. After the child was returned to
mother in March 2011, the child lived with mother for only about two
months before mother left her with Tina for weeks without provisions or regular
visits, leading Agency to file the second supplemental section 387 petition in
July 2011. After the one time that
mother visited the child at Tina’s, the child started to wet the bed at night. After the initial hearing on the section 387
supplemental petition, mother missed visits in August and September. Despite unsafe housing conditions, mother
displayed minimal effort to locate better housing, notwithstanding Agency’s
referrals. Although mother finally
obtained housing at Raphael House, within about a month she was on probation
for missing therapy sessions, leaving overnight without permission, failing to
return when scheduled, failing to communicate with staff, and refusing to
complete her chores. She failed to
participate in individual therapy, attend family therapy, and complete a
domestic violence program. Furthermore,
the child did not want to return to mother’s care or even have unsupervised
visits, out of fear that mother would hit her or “flick†her on the cheek.
Mother
argues that the dangers to the child were eliminated by the time of the section
387 jurisdictional and disposition hearing on October 24, 2011: she had arranged safe housing for herself and
the child at Raphael House, where she had become in good standing; she had
returned to therapy; and she had eliminated what she calls the only true danger
to her daughter – the previous living situation with the grandmother.
However,
there was no indication that the mother’s progress in this regard addressed the
child’s fear of being alone with mother, which arose from the child’s concern
that mother would continue to hit or “flick†her. Nor was it unreasonable for the juvenile
court to conclude that mother’s progress would be as short-lived as it was on
the other occasions in which she had been entrusted with the custody and care
of the child – to the child’s detriment.
Although mother had at times made progress toward alleviating the
conditions that gave rise to the dependency, when she regained full-time
custody her difficulties in independently caring for the child resulted in the
child being placed with someone else within months. It is not unreasonable to conclude that this
instability takes quite a toll.
Similarly, it was reasonable to conclude, based on the evidence at the
hearing (including mother’s history), that there was a substantial risk that
the advances mother had made in her housing and return to therapy would be
short-lived as well.
We
agree with real party in interest that mother, as a victim of heinous crimes
and a former dependent child herself, has had a difficult life. We commend her for her recent compliance with
the residential program at Raphael House and her return to therapy, and we
encourage her to continue her efforts.
At this point, however, the paramount concern for the juvenile court is
the best interests of her now seven-year-old child, who has been shuttled
amongst caretakers in the dependency system for most of her life. Substantial evidence supported the juvenile
court’s conclusion that there was a danger to the child within the meaning of
section 361, subdivision (c)(1) if she remained in mother’s custody, and such
danger could not reasonably be avoided without removal.
III. DISPOSITION
The
petition for writ of mandate is denied.
_________________________
Needham,
J.
We concur:
_________________________
Simons, Acting P.J.
_________________________
Bruiniers, J.
statutory references are to the Welfare and Institutions Code.
support removal, it also supported the termination of services, due to the
passage of time since the initial removal and mother’s failure to avail herself
of the services offered or provided.
Under the circumstances, the court’s setting of a section 366.26 hearing
to implement a permanent plan has not been shown to be erroneous.
